Opinions Aug. 27, 2014

August 27, 2014
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The following Indiana Supreme Court opinion was posted after IL deadline Tuesday:
Indiana Patient's Compensation Fund v. Judy Holcomb, Personal Representative of the Estate of Mable Louise Cochran, Deceased
Civil collection. Affirms award of $50,440 in attorney fees to the estate from the Indiana Patient’s Compensation Fund. The fee cap provision in the Medical Malpractice Act does not directly apply to the fund to limit its liability. The fund may be required to pay more than 15 percent in attorney fees.

Wednesday’s opinions
7th Circuit Court of Appeals

Kenneth Owen Scrogham v. Carolyn W. Colvin, acting commissioner of Social Security
U.S. District Court, Southern District of Indiana, New Albany Division, Judge Tanya Walton Pratt.
Civil. Reverses denial of application for disability benefits and remands for further proceedings. The administrative law judge’s methodology was flawed in several respects. Three logical errors – overstating the significance of Scrogham’s daily activities, overreliance on his rehabilitative efforts as proof of his fitness for full-time work, and misinterpreting the significance of his extensive treatment – had a material effect on the ALJ’s credibility and residual functional capacity assessments.

Indiana Court of Appeals
Marquise Lee v. State of Indiana
Criminal. Grants rehearing and affirms Lee’s conviction of Class B felony attempted aggravated battery. Declines Lee’s request to follow the reasoning of the Young panel. Holds that he did not preserve this issue for appellate review and that the trial court did not commit fundamental error when it entered judgment against Lee for attempted aggravated battery as an inherently lesser included offense to the state’s charge of murder.

Thomas Walter Gorski v. State of Indiana (NFP)
Criminal. Affirms 28-year aggregate sentence for Class B felony neglect of a dependent resulting in serious bodily injury and attempted dealing in a narcotic drug as a Class B felony.

Cohen & Malad, LLP v. John P. Daly, Jr., Golitko & Daly, P.C. and Golitko Legal Group, P.C. (NFP)
Civil plenary. Affirms that Cohen & Malad is not due quantum meruit compensation from John Daly and Golitko & Daly after Daly took 24 cases with him when he left Cohen & Malad and joined Golitko & Daly.

Jaro Mayda II v. Melinda D. Barnette (NFP)
Civil collection. Affirms order granting Barnette’s motion to dismiss Mayda’s complaint against her alleging fraud, defamation and failure to repay a loan purportedly established by oral agreement.

Latoya C. Lee v. State of Indiana (NFP)
Criminal. Grants rehearing, but declines to reverse conviction of Class B felony attempted aggravated battery.

Layne L. Dellamuth and Anita M. Dellamuth v. Ken's Carpets Unlimited, Inc. d/b/a Carpets Unlimited (NFP)
Civil collection. Affirms summary judgment in favor of Carpets Unlimited on its complaint against the Dellamuths for failure to pay a balance owed on an account.

Evanston Insurance Company and Markel Corporation v. Samantha Meeks Family Practice, Inc., Samantha Meeks, and George Edwin Grant, et al. (NFP)
Civil plenary. Reverses and remands with instructions to deny the summary judgment motion of Meeks and her practice and grant the summary judgment motion of Evanston Insurance and Markel Corp. over whether a policy was in effect when Meeks made her claim.  

Frank Blythe v. State of Indiana (NFP)
Criminal. Affirms convictions of Class B felonies dealing in a narcotic drug and dealing in a controlled substance.



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  1. Lori, you must really love wedding cake stories like this one ... happy enuf ending for you?

  2. This new language about a warning has not been discussed at previous meetings. It's not available online. Since it must be made public knowledge before the vote, does anyone know exactly what it says? Further, this proposal was held up for 5 weeks because members Carol and Lucy insisted that all terms used be defined. So now, definitions are unnecessary and have not been inserted? Beyond these requirements, what is the logic behind giving one free pass to discriminators? Is that how laws work - break it once and that's ok? Just don't do it again? Three members of Carmel's council have done just about everything they can think of to prohibit an anti-discrimination ordinance in Carmel, much to Brainard's consternation, I'm told. These three 'want to be so careful' that they have failed to do what at least 13 other communities, including Martinsville, have already done. It's not being careful. It's standing in the way of what 60% of Carmel residents want. It's hurting CArmel in thT businesses have refused to locate because the council has not gotten with the program. And now they want to give discriminatory one free shot to do so. Unacceptable. Once three members leave the council because they lost their races, the Carmel council will have unanimous approval of the ordinance as originally drafted, not with a one free shot to discriminate freebie. That happens in January 2016. Why give a freebie when all we have to do is wait 3 months and get an ordinance with teeth from Day 1? If nothing else, can you please get s copy from Carmel and post it so we can see what else has changed in the proposal?

  3. Here is an interesting 2012 law review article for any who wish to dive deeper into this subject matter: Excerpt: "Judicial interpretation of the ADA has extended public entity liability to licensing agencies in the licensure and certification of attorneys.49 State bar examiners have the authority to conduct fitness investigations for the purpose of determining whether an applicant is a direct threat to the public.50 A “direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services as provided by § 35.139.”51 However, bar examiners may not utilize generalizations or stereotypes about the applicant’s disability in concluding that an applicant is a direct threat.52"

  4. We have been on the waiting list since 2009, i was notified almost 4 months ago that we were going to start receiving payments and we still have received nothing. Every time I call I'm told I just have to wait it's in the lawyers hands. Is everyone else still waiting?

  5. I hope you dont mind but to answer my question. What amendment does this case pretain to?